Planning Enforcement

Planning Enforcement

Planning Enforcement is a complicated and litigious matter if not dealt with promptly and appropriately. If you are in difficulty and have received a warning letter or an enforcement notice is issued against you, it is best advised to call in a planning expert to guide you. A planning expert will help you follow the law and avoid costly legal action.

Why choose Declan Noonan & Associates to deal with your planning enforcement issue?Declan Noonan & Associates can review your case and advise and guide you through the process of regularising any planning breech. We can provide a practical, cost effective solution to your problem. We will be the face to the action. We will deal with all correspondence and meetings with the planning authority in negotiating a solution. In the limited number of situations where a negotiated solution cannot be reached, we will manage the legal process for you providing legal and reasoned arguments to defend your position

More often than not an environmental issue is involved when an enforcement notice is issued. Our experience and knowledge of environmental issues and legislation gives us the edge over our competitors. We have the expertise both in planning and environmental issues in house and can exclusively deal with all aspects of your planning or enforcement issue. We have a proven track record in securing planning permission in a timely and cost effective manner for the complex planning scenarios and in sensitive environmental locations.

Expert witness in Planning Enforcement legal casesIf you find yourself facing legal action we can work with you immediately. The professional relationships we have built up over the years, facilitate direct access with members of the Bar of Ireland. In any instance we can consult with and instruct barristers directly on behalf of our clients. Don’t risk facing massive fines or imprisonment as a result of planning breaches or unauthorised development undertaken. Contact Declan Noonan & Associates to deal with the legalities of your planning case.

Who is responsible for Planning Enforcement?Under the Planning and Development Act 2000 the Minister for the Environment, Community and Local Government is responsible for developing planning policy and legislation. Effective enforcement is vital for the credibility of the planning system. The Department’s key objectives for planning enforcement by planning authorities are:

to bring unauthorised development under control

to remedy any undesirable effects of unauthorised development including, where necessary, the remediation of negative effects of the development, the removal or cessation of unacceptable development

to take legal action, where necessary, against those who ignore or flout planning legislation.

The planning system in Ireland is operated on the ground by local planning authorities. The planning authorities are therefore responsible for operating Ireland’s planning enforcement regime.

How to make a complaint regarding suspected unauthorised development?Where you believe that unauthorised activity may have been, is being or may be about to be carried out you should make a complaint, by contacting Declan Noonan & Associates. We will write to the planning authority on your behalf and manage the process for you from start to finish so you can reach your desired outcome stress free.

Under the Planning Acts, it is obligatory for the planning authority to follow up substantive written complaints of breaches of the planning code, unless it considers the complaint to be trivial. Generally speaking, all documentation relating to enforcement actions, for example, correspondence or the planner’s report to the Manager, should be readily available to all parties directly involved and to the general public. Exceptions to this general approach arise where availability of documents could prejudice a possible court action or the availability of documents would reveal the identity of complainants in sensitive cases.

The planning authority exercises a discretion that sensitive personal data should not be disclosed.

What constitutes unauthorised development? When is planning enforcement necessary?Under the Irish planning system, development can be lawfully carried out either in accordance with the terms of the planning permission granted for it; or in the case of an exempted development, without planning permission but in accordance with the terms of the exemption.

Any development which requires permission and does not have that permission is unauthorised development, as is a development which is proceeding in breach of conditions laid down in the planning permission. The carrying out of unauthorised development is an offence.

The following are examples of unauthorised developments that may be subject to enforcement action by a planning authority:

erection of structure or building which requires planning permission but has been built without it

change of use of a structure without permission e.g. shop to office

unauthorised works to or demolition of a protected structure

non-compliance with conditions attached to a planning permission

unauthorised display of an advertisement

unauthorised works to trees protected by a Tree Preservation Order and/or within a conservation area

What types of development do not constitute unauthorised development/breaches of the planning code?Planning legislation provides that certain types of development are exempted from planning control. Development is exempt from the planning code mainly in cases where there would be only a limited impact on the surrounding environment, or it is regulated under a separate code which allows for public consultation prior to authorisation being granted. Certain classes of development are exempt from requiring planning permission, e.g., the extension of any house subject to certain conditions such as it being less than 40 sq. m.

Planning law also provides a mechanism to determine whether or not a particular development needs planning permission or, indeed, whether the activity should be considered development or not. Under this provision, it is possible to seek a declaration on this question from the planning authority rather than having to take legal action. This provision is contained in section 5 of the Planning and Development Act 2000.

Any person (including third parties) can make a written request to the planning authority for such a declaration, by including all relevant information and the required fee. The planning authority may request further information to be provided either by the applicant or another interested party. The authority must then issue a declaration within 4 weeks (or 3 weeks from the receipt of further information) giving the reasons for its decision. This is known as a ‘section 5 declaration’. Once the planning authority makes a declaration, there is a 4-week window in which to seek a review by An Bord Pleanála (in effect, an appeal). Alternatively, if the planning authority fails to make a decision within the set time period, the matter can be referred – also within 4 weeks – to the Board for a determination. A planning authority itself may seek a declaration from the Board where it is in doubt about whether or not a development is exempt.

Planning regulations contain detailed lists of developments that are exempt from the requirement to have planning permission.

Who can complain about planning enforcement and how can I make a complaint?It is open to anyone to make a planning enforcement complaint to their planning authority. Where you believe that unauthorised activity may have been, is being or may be about to be carried out, you should make a complaint, in writing, to your planning authority. Complaints made should be as specific as possible, ideally setting out; the nature and extent of the alleged unauthorised development (e.g. unauthorized quarrying activity, breach of conditions attached to a permission, demolition or damage to a protected structure); the location of the unauthorised development; a timeline (i.e. how long the development has been ongoing or when the alleged breach took place) and the effects of the development (on you, the environment, the surrounding area,etc).

Once a planning authority has received your written complaint and forms the view that unauthorised development may have been, is being or may be carried out, it must issue a warning letter (see section 6 for content of the warning letter) to the owner or person carrying out the development unless the development in question is of a trivial or minor nature.

After issuing the warning letter the planning authority will carry out an investigation in order to inform its decision on whether to issue an enforcement notice or take other action, e.g. seek a court order. As part of the investigation the authority will carry out a visit to the affected site. It will also use any available records to cross-check against the site or individual developer in question (e.g. extant planning permissions in respect of the affected site, previous enforcement proceedings brought).

What happens after I make a complaint? What are the steps in the enforcement process?

On receipt of a written complaint, where it would appear that unauthorised development may have been, is being or may be carried out, the planning authority must issue a warning letter to the owner or person carrying out the development, unless the development in question is of a trivial or minor nature or the planning authority considers that the complaint is without substance. The warning letter must issue within 6 weeks of the written complaint (if there is one) being made and must

state that an unauthorised development may have been, or is being, carried out

state that the person has 4 weeks to make a submission to the planning authority on the allegations; state that if the authority forms the view that the development is unauthorised, an enforcement notice (see below) may issue

state that the authority’s officials may enter the land for the purposes of in

explain that a court action may be taken to recover costs incurred by the authority.

Step 2: Decision on Enforcement (see s. 153 of the Planning and Development Acts 2000–2012)

Once the letter is issued, the authority has to investigate the matter with a view to deciding whether further action is required. This decision must be taken as quickly as possible. In making its decision, the authority must take into account the original written complaint received (if there was one) and any representations from the person who was served with the warning notice.

Where the planning authority establishes, having carried out an investigation, that unauthorised development is being carried out which is not trivial or minor, and the person carrying out the development does not move to remedy the situation (e.g. by removing the offending development or by applying for permission) the planning authority must take in general take further action. (The law provides that the planning authority would have to have a compelling reason for not taking further action in such a case).

The planning authority’s decision, and the reasons for it, must be entered on the planning register, which is available for viewing in all planning authority offices.

Where the authority decides not to pursue enforcement action it has two further weeks to notify the complainant and anyone else who had been earlier notified of the original warning letter issuing.

Once a planning authority has decided to pursue enforcement action, an enforcement notice is served on the person carrying out the development and (if necessary) the landowner and any other person concerned.

Notification of the issuing of the enforcement notice is also sent to the original complainant (if there was one) and anyone else concerned, although failure to do this will not affect the validity of the enforcement notice. In the meantime, if the authority becomes aware that other people may also be responsible for the unauthorised development it can serve notice on them also, extending the deadline for compliance as appropriate.

An enforcement notice is effective from the date it is served and it states the following:

where the development is being carried out without planning permission

that it must cease

where the development has planning permission but is not being carried out in accordance with it, that it must fully comply with the permission concerned

that certain steps are to be taken within a specified period, including the removal, demolition, or alteration of any structure; the discontinuance of any use of land; or the restoration of the land to its previous state before the unauthorised development began

that where these steps are not taken within the period stated the person will be guilty of an offence and that the planning authority may enter the land and do the work itself with the cost being recoverable from the person

that other costs involved with taking the enforcement action can be recovered from • the person by the authority, e.g. investigation, employee and consultant costs.

The carrying out of any works for restoration, etc. on foot of an enforcement notice or court order (see below) does not need planning permission, given that failure to do this would place the person in breach of planning law.

Step 3B Application for a court order (see s. 160 of the Planning and Development Acts 2000–2012)

Instead of issuing an enforcement notice (or subsequent to issuing an enforcement notice, in the event the notice is not complied with) a planning authority can also apply to the Circuit or High Court for an injunction preventing it. Significantly, any other person may also seek an injunction against an unauthorised development without reference to the planning authority. This provision may be of particular interest to members of the public and non-governmental organisations who have been unsuccessful in securing planning authority agreement to the pursuit of enforcement action.

The court order, if successfully obtained, may require, for example, that the unauthorised development should not commence or continue and that, in so far as possible, the land be restored to its original state or that that the development be carried out in accordance with any permission related to it or that certain works be carried out, e.g. restore, reconstruct, demolish. It may also make provision for the payment of costs.

Depending on the size of the case involved, the action may have to be taken in either the Circuit Court or the High Court. The dividing line is whether the market value of the land concerned is above €3,000,000 or not; anything below this falls into the Circuit Court’s jurisdiction and anything above it is the responsibility of the High Court.

In cases where the land has not been given a market value, the Circuit Court decides whether its market value would be more than €3,000,000. If so, the case is transferred to the High Court; however, anything determined by the Circuit Court before this transfer remains effective unless modified by the High Court.

Action in cases of urgency

Where a planning authority is of the opinion that the particular nature of an unauthorised development that is taking place or may be about to take place requires urgent action it may move immediately to issue an enforcement notice or to seek an injunction, without having first issued a warning letter.

Are there any limitations on activating enforcement action?A statute of limitation (the so-called “seven year rule”) means that action cannot be taken against an unauthorised development after a seven year period has passed. Until recently, this rule applied equally to all types of unauthorised developments; however, it has now been amended in the case of quarrying operations and peat extraction. Enforcement proceedings may now be issued/commenced at any time to require unauthorised quarrying or peat extraction to cease, irrespective of the time that has elapsed, enforcement action can still be taken where a person has failed to satisfy a planning condition concerning the use of land.

What offences and penalties are applicable under the Planning Code?There are a range of offences for breaching planning law, with penalties varying according to the seriousness of the case. An offence can be:

indictable:• for serious offences where the accused is entitled to trial by jury; these are normally prosecuted by the Director of Public Prosecutions, or;

summary:• less serious, where there is no trial by jury.

Where any of these offences involve the construction of an unauthorised development, the minimum fine is:

indictment:• the cost of constructing the structure or €12,700, whichever is less;

summary:• the cost of constructing the structure or €2,500, whichever is less.

The penalties and fines are set out in the table at the end of this guide.

Aside from those listed above, all other offences under the Planning Acts carry a maximum penalty of €5,000 or 6 months imprisonment or both. In each of the following cases, where the person continues the offence after conviction, they are guilty of a further offence for each day it continues and this carries a maximum fine of €1,500:

failure to comply with notice requiring the removal or alteration of a structure or a discontinuance of use

obstruction of or interference with a public right of way

obstruction of an authorised person from entering land for the purposes of an inspection.

Where a body corporate commits an offence, the individuals within that body who are responsible for the offence can also be prosecuted.

Section 35 of the Planning Act provides that a planning authority may, where it forms the opinion that there is a real and substantial risk that a proposed development would not be completed in accordance with the permission being sought, refuse permission without prior authorisation from the Courts, to a person or company who has failed substantially to comply with a previous permission or who has carried out a substantial unauthorised development (subject to giving the applicant prior notification and an opportunity to respond).

Where a planning authority refuses permission under this provision, the applicant may apply to the High Court to have the refusal annulled. In this case the High Court may, as it considers appropriate:

confirm the decision of the planning authority

annul the decision and direct the authority to consider the applicant’s application for planning permission without reference to the provisions of section 35

make such other order as it deems fit.

Where the Court directs the planning authority to consider the application without reference to section 35, the planning authority must make its decision on the application within a period of 8 weeks from the date the order of the High Court in the matter is perfected (that is, the date on which all necessary legal steps are completed). Where the High Court confirms the decision of the planning authority, there is, of course, no provision for the applicant to appeal to the Board.

How are offences prosecuted?A planning authority can undertake the prosecution of summary offences irrespective of whether the offence concerned was committed in its area, however, there is a limited time frame within which proceedings can be brought, which is either 6 months from when the offence was committed, or 6 months from when sufficient evidence to justify proceedings came to the attention of the person now bringing those proceedings, whichever is the later.

For the purposes of establishing the relevant dates, a signed certificate by the person bringing proceedings – usually a representative of the prosecuting planning authority – is sufficient. It is not necessary to prove the persons signature in court.

Where the planning authority is prosecuting an offence in relation to an unauthorised development, the presumption is that the development is not exempted. Where it is claimed that the development is exempted, the onus of proving this rests with the defendant. Likewise, where the defendant claims to have a legitimate planning permission for the development, the onus is on them to prove it.

In the past, developers who lodged planning applications subsequent to enforcement action being served upon them were treated less severely by the Courts. In some cases, the Courts considered that lighter penalties (if any) should apply where the developer had made some attempt to come within the law. This resulted in developers initiating unauthorised development more regularly, in the knowledge that the full penalties were unlikely to be applied to them; in short, the in-built deterrents in the system were undermined.

The legislation now provides that once enforcement action is initiated, it will be unaffected by a planning application being lodged subsequently for retention permission.

Likewise, lodging an application for planning retention for a development that is the subject of enforcement action does not diminish any offence committed. However, in cases of unauthorised development, it is a legitimate defence that the person took all reasonable steps to comply with the enforcement notice.

Where a person is convicted of an offence the Court must instruct them to pay all costs and expenses of the action, unless there are special and substantial reasons for deciding otherwise. Depending on who is prosecuting the offence, these costs may be payable to the planning authority, a person granted an injunction, or both.

Can unauthorised development ever be regularised/brought within the planning system?Depending on the scale, nature and circumstances, it may still be possible to bring a particular unauthorised development within the planning code or to regularise it retrospectively. Where a development has been carried out without first obtaining the necessary planning permission, the developer may apply to their planning authority for retention permission. The circumstances under which retention permission is available are tightly circumscribed however. A planning authority cannot accept an application for retention permission for any development which would have required

environmental impact assessment (EIA)

a determination as to whether EIA was required (i.e. screening for EIA)

an appropriate assessment under the Habitats Directive (since such an assessment is also required prior to permission for a proposed development).

Only in cases where none of these were required can a planning authority accept an application for retention permission. It is also important to note that lodging an application for planning retention for a development that is the subject of enforcement action does not diminish any offence committed.

Where can I find out more about planning enforcement?To find out more about planning enforcement please contact Declan Noonan & Associates. We can advise you on all matters relating to planning enforcement.